False Patent Marking

Many companies mark their products as patented by the patent number on the product or its packaging. Often they mark their products as patented by the patent application number on the product or its packaging before obtaining granted patent. It is false patent marking. More often many companies continue to mark their products as patented by the patent number on the product or its packaging after the expiry of the patent. That is false patent marking, too.

Patent marking may create consumer goodwill by suggesting that the product is innovative and further deter competitors to enter market with the same product. Even before patent granted, manufacturers may try to achieve similar effect through marking product with a patent application number. On the other hand, continued listing of an expired patent would continue to benefit the manufacturer, too.

In Korea, false patent marking can be charged as a crime. The person or company who did such false patent marking shall be imprisoned not more that 3 years or fined not more than KRW20million (about US$22,000). Several cases law show around US$5,000 fines for false marking.

The Korean Patent Act provides a cause of action against those who falsely claim that their products are patented. A company that falsely marks or advertises a product as patented can be held liable. However, it usually is not a cause of action for civil lawsuit including damage compensation. Without exceptional circumstances, false patent marking is within criminal sanction in Korea. Furthermore, under the Korean patent law, it does not require to falsely mark “for the purpose of deceiving the public” as like in the U.S. The intent or knowledge on false marking is enough.

Basically patent marking is not required by the Korean patent law. Without patent marking, a patentee may obtain a preliminary or permanent injunction against infringers. Unlike the injunction remedy, however, the patentee must prove the intent or negligence of infringers in order to obtain damage compensation from the infringers. Marking is an effective and convenient method to prove it and has been used ordinarily in practice.